I’m sure that President Obama’s Supreme Court nominee Elena Kagan is very smart, very well qualified and is going to get confirmed. However, I distinctly remember being told that the Obama campaign gave assurances to many in the copyright community that as President, then-Senator Obama would not choose a radical approach to copyright. It is my understanding that Lessig’s self-professed influence with Barack Obama was a topic that was specifically discussed and was rejected by the campaign.

Now it is a free country and no one can stop anyone else from saying something nice about them. But when the person who is saying something nice is in the radical fringe it might be a good idea to make clear exactly what your association with them is and whether you support their views. Particularly when your endorser describes himself as a “copyfighter”.

Lawrence Lessig is one of the few academics who are making a case for Elena Kagan’s nomination to the U.S. Supreme Court (See Lessig: A Case for Kagan). I’d be surprised if others did not chime in as the confirmation hearings progress, but he was certainly one of the earlier allies. (I guess it’s still proper to refer to Lessig as an “academic” although he seems to be mostly devoting his attention to his political activities after he decided not to disclose his tax returns…I mean campaign against…Jackie Speier for the old Tom Lantos district in San Mateo a/k/a the Googleopolis. This is all the more interesting given that Google would probably have delivered a substantial number of votes from its own employees.)

His argument in support of Kagan basically boils down to “trust me.”

I’m not the only one who’s not quite ready to make that leap. The brilliant Glenn Greenwald also has lots of problems accepting a “trust me” rationale and is one of the very, very few journalists who has ever taken Lessig on directly in public. (Greenwald’s anonymous hate mail from Lessig fanboys must be at a fever pitch by now.) Greenwald and I disagree about Lessig for a variety of reasons, so I’m not suggesting that Greenwald agrees with me about my problems with the Lessig-Kagan relationship. But we agree for different reasons that “trust me” ain’t quite cutting it.

Now you always know when you have a digital native fanboy boxed because they go for the “well, you’re stupid” line of defense. And right on cue, perhaps when he was so caught up in the emotion that he didn’t realize he wasn’t leaving an anonymous comment on 4Chan, Lessig reveals himself on Rachel Maddow’s national television show:

“[Greenwald] said right at the top of your show that there’s a complete blank slate here. That every substantive legal question she has left unanswered. That is just absurd.”

Why is it “absurd”? No truth to it at all? Did Greenwald (and the preponderance of journalists and commentators) just got the “blank slate” thing so wrong that it’s laughable, i.e., absurd? (Click here for 5,000+ articles that more or less say the opposite.) And if we were all just as smart as Lessig we would see the error of our ways? Is that why Greenwald is absurd? Not so much.

I think it’s fair to say that professors really don’t like being challenged when they can’t just shut you up like a student in their classes who can’t fight back. Witness Lessig’s dismal performance on The Colbert Report.

But the fact is that Lessig is very, very anti-creator (see “In Defense of Piracy” and “The Starving Artist Canard”). The Pirate Party clip above crystallizes the venom he exudes against “Hollywood” to the great glee of his digital predator Pirate Party audiences. (The Pirate Party clip also has an example of the ambiguity that Lessig is famous for, as I feel very confident by the context that when he seems to be talking in favor of “creators” he’s not talking about professional artists, he’s talking about “follow-on” artists as he calls them, or as I call it “regurgitative art”.)

So if Lessig is anti-creator and a hero of the Pirate Party fringe, what does that mean for Kagan? (That would be the same Pirate Party who was invited to speak at Lessig’s group at Stanford which turned into a fundraiser at the self-styled “Temporary Autonomous Zone” where those in attendance were asked to “press wads of cash” into the hand of the Pirate Party Leader. Which probably isn’t worth the prosecutorial resources, but which seems like it must be illegal under US law.)

It may well mean nothing at all. It may well mean that this is just an exercise in academic back scratching and Lessig may be operating all on his own. It may even be that he thought he was doing his old pal Elena Kagan a solid by endorsing her. Or it may be that he’s looking for yet more PR, drafting behind a Supreme Court nominee.

Unfortunately for Kagan, Lessig is a highly controversial figure and she has virtually no record on the intellectual property rights that Lessig is out to destroy. Except for her speech at the 10th anniversary of the Berkman Center during which she praises the Berkman Center for everything they’ve done for the entertainment industry. (Or more specifically, she praised the Berkman Center scholar Jonathan Zittrain for all the good things he’s done for the entertainment industry, who is the guy Lessig refers to in the Pirate Party clip above.)

And that–that–is absurd. Truly.

I think that given the clearly enunciated interests that working Americans have in IP that are directly opposed by Lessig and the Berkman Center, people she has praised to the skies as having helped the entertainment industry, Kagan needs to make it clear what her views are about intellectual property. Does she think that statutory damages are unconstitutional? Does she think that the copyright term should be 5 years?

As the world is moving away from the reactionary views Lessig has held for years, it seems that the AFL-CIO members who are watching their jobs be destroyed–not due to innovation or disruptive technology, but due to theft–are entitled to an explanation. I’m sure that Kagan empathizes with these workers but Lessig and the Berkman Center clearly do not.